The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants

Abstract

AbstractThis article analyses the treatment of so-called transnational migrants in expulsion cases reviewed under Article 8 of the European Convention on Human Rights before the European Court of Human Rights (hereinafter: the Court). By regularly crossing national borders and maintaining cultural and social ties to more than one country these migrants are in fact not effectively protected by the Court. This disadvantaging treatment can be explained as being the result of the Court's doctrine of margin of appreciation which allows domestic political preference in immigration policy to dominate the balancing process before the Court. The margin of appreciation doctrine is interpreted as the Court's way of dealing with the more general tension it faces in acting as a guardian on the one hand and respecting domestic legislation on the other. This tension is strengthened by the institutional arrangement under which the Court is acting. Against this background, this article submits two possible amendments on the doctrinal and procedural level, suggesting that the Court should follow a more inclusive reasoning and should replace the margin of appreciation doctrine by the concept of core content.